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or by a note in writing, and he leaves no direction by note or codicil, the Court will dispose of it to such charitable purposes as it shall think fit. But a bequest for such benevolent, religious, and charitable purposes, or for such charitable or public purposes, as the trustees should think most beneficial, is void.
Where the giver has specified any particular charitable object, which is contrary to the policy of the law, or from some other reason cannot be accomplished at all, or not in the way prescribed, the Court will devote the property to some other charitable purpose, if the nature of the gift, or the concurrence of other charitable gifts in the same instrument, indicates that although the specified object was the favourite, yet it was not the exclusive object of the giver, but that he would have substituted some other charitable object, had he imagined that his favourite design might possibly be incapable of being accomplished. But where no such indication appears (as where the testator's object is to build a church at W., and that cannot be effected) the next of kin will take. Where there are no objects in esse, but some may arise, the Court will keep the fund for them. And when there can be no such objects as those which are specified, or when the specified objects cease to exist, the Court will remodel the charity.
(4.) In regard to surplus income, if a testator clearly shows an intention to devote the whole income of a property to charitable purposes, it will be so applied, although his specific charitable dispositions do not exhaust the whole income. And when the increased revenues of a charity are more than sufficient for the specified objects of charity, the surplus will not go to the heir at law or next of kin of the founder, but will be applied to the augmentation of the benefits of the charity or to other charitable purposes.
Where money is bequeathed to charitable purposes abroad, the Court will secure the funds and cause the charity to be administered under its own direction, provided the charitable purposes are to be executed by persons residing within the jurisdiction of the Court. But this will not be done if the objects of the charity are against law or public policy, unless the principle of such policy or law is of a national or conventional, rather than of a universal and moral or religious character. (Smith's Man. Eq., 12th ed., 162–166.)
In the above case, as the Court, in the absence of a contrary intention being shown by the will, does not marshall assets in favour of a charity, and the property, which can only be given by will to a charity (i.e., the pure personalty), is insufficient in quantity to give full effect to the gift by the will, the Court will appropriate the residuary personal estate as if no legal objection existed as to applying any portion of it to the charity, and such proportion of the share given to the charity will be held to fail as would in that way fail to be paid out of the prohibited fund. (H. A. Smith's Equity, 30.)
28. If a draft to his order be delivered by A. to another (say C.), indorsed by A. specially to B., and such delivery is made for the purpose of handing the draft to B., and the draft be misappropriated by C., who forges the indorsement of B., and hands the draft to his (C.'s) bankers for collection, who receive the amount, has A. any, and if any, what, remedy against the bankers to recover the amount ? State the general principles of law applicable to this question, and cite any cuse which governs it.
The bankers upon whom the cheque is drawn are not liable for paying a cheque of their customer's bearing a forged indorsement, for they are specially protected by statute (the Bills of Exchange Act, 1882, sect. 60, and 16 & 17 Vict. c. 59, s. 19, which is still unrepealed). It has been decided that 16 & 17 Vict. c. 59, s. 19, does not protect any third person to whom a cheque is indorsed by a forged signature, but only the banker on whom it is drawn, and if such third person cashes such a cheque he will be liable to refund the money received by him in respect of that cheque to the drawer. (Ogden v. Bevas and Another, 43 L. J. C. P. 259.)
C.'s bankers will not be liable because C. will have crossed it to his bankers generally or specially, and they will have received payment from the drawer's bankers in good faith and without negligence, so as not to have incurred any liability to A., the true owner of the cheque, by reason only of having received such payment within the terms of the statute in that behalf (the Bills of Exchange Act, 1882, sect. 82), and this is so, though the words “not negotiable” do not appear on the face of the cheque. (Matthiesson and Another v. The London and County Banking Co., 41 L. J. C. P. 529; L. R. 5 C. P. 7.)
The general rule is that no title can be derived from a forgery, and consequently, but for the above statutory enactments, both the banks would be liable to A., the true owner of the cheque.
29. The payee of a cheque handed it to his clerk to pay into a bank. The clerk absconded with it, and, after altering the date from the 2nd to the 26th of March, passed it for value to B. Payment of the cheque was refused by the banker, the drawer having stopped payment. B., who had not been guilty of any negligence in taking the cheque, thereupon brings an action against the drawer for the amount of the cheque. Can he recover ? Give reasons for your
Yes, owing to the combined effect of sect. 73, and the proviso to sect. 64 of the Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), which alters the previous law in favour of "a holder in due course "like B. Previously the cheque was void in B.'s hands, because it was altered, though by a stranger, for the date is a material part, and the fact of his not being guilty of negligence was immaterial. (See Vance v. Lowther, 45 L. J. Q. B. 200; L. R. 1 Ex. D. 176 ; Smith's Man. Com. Law, 335.)
Where a Bank of England note, the number of which was erased and another number substituted, came into the hands of one Suffell -a bona fide holder for value—it was held that he could not sue the Bank of England upon it as the alteration was a material one, and avoided the instrument. (Suffell v. Bank of England, 51 L. J. R. Q. B. (App.) 401.
The privileges of the Banks of England and Ireland are unaffected by the Bills of Exchange Act, 1882, sect. 97, sub-s. 30. (See Master v. Miller, 1 Sm. L. C. 871; Haynes's Student's Leading Cases, 58; Aldous v. Cornwell, L. R. 3 Q. B. 573; Chalmers' Bills of Exchange Act, 1882, pp. 46, 53 and 65.)
30. What provisions must the memorandum of association contain in the case of company limited by shares ? Can the objects or scope of the company as defined by the memorandum of association be extended after registration; and, if so, how can such change be ratified ?
The memorandum of association of a company limited by shares must contain the following things:
(1.) The name of the company with the addition of the word “limited," as the last word of such name.
(2.) The part of the United Kingdom in which the registered office of the company is proposed to be situate.
(3.) The objects for which the company is to be established. (4.) A declaration that the liability of the members is limited.
(5.) The amount of capital with which the company proposes to be registered, divided into shares of a certain fixed amount, subject to the following regulations :
(a.) That no subscriber shall take less than one share. (6.) That each subscriber of the memorandum of association shall
write opposite to his name the number of shares he takes (25 & 26 Vict. c. 89). (Williams' Personal Property, 10th ed.,
248; Haynes's Student's Statutes, 2nd ed., 37-38.) The objects or scope of the company as defined by the memorandum of association may be extended after a registration only in the cases provided for by statute, which are as follows.
The Companies Act, 1862, sect. 12, provides :
Any company limited by shares may so far modify the conditions contained in its memorandum of association, if authorized to do so by its regulations as originally framed, or as altered by special resolution in manner hereinafter mentioned, as to increase its capital by the issue of new shares of such amount as it thinks expedient, or to consolidate and divide its capital into shares of larger amount than its existing shares, or to convert its paid up shares into stock, but, save as aforesaid, and save as is hereinafter provided, in the case of a change of name, no alteration shall be made by any company in the conditions contained in its memorandum of association.
And the same Act, sect. 52, provides that:
A resolution passed by a company under this Act shall be deemed to be special whenever a resolution has been passed by a majority of not less than three-fourths of such members of the
for the time being entitled according to the regulations of the company to vote as may be present, in person or by proxy (in cases where by the regulations of the company proxies are allowed), at any general meeting of which notice specifying the intention to propose such resolution has been duly given, and such resolution has been confirmed by a majority of such members for the time being entitled according to the regulations of the company to vote as may be present, in person or by proxy, at a subsequent general meeting, of which notice has been duly given, and held at an interval of not less than fourteen days, nor more than one month, from the date of the meeting at which such resolution was first passed ; at any meeting mentioned in this section, unless a poll is demanded by at least five members, a declaration of the chairman that the resolution has been carried shall be deemed conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favour of or against the same; notice of any meeting shall, for the purposes of this section, be deemed to be duly given and the meeting to be duly held, whenever such notice is given and meeting held in manner prescribed by the regulations of the company; in computing the majority under this section, when a poll is demanded, reference shall be had to the number of votes to which cach member is entitled by the regulations of the company.
The Companies Act, 1867 (sects. 9, 10, 11, 18 and 21), provides :
Any company limited by shares may, by special resolution, so far modify the conditions contained in its memorandum of association, if authorised so to do by its regulations as originally framed, or as altered by special resolution, as to reduce its capital; but no such resolution for reducing the capital of any company shall come into operation until an order of the Court is registered by the registrar of joint-stock companies. (Sect. 9.)
The company shall, after the date of the passing of any special resolution for reducing its capital, add to its name, until such date as the Court may fix, the words " and reduced” as the last words